State Consumer Disputes Redressal Commission
Sajjan Kumar Gupta vs Fiitjee on 20 August, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 261 of 2013 Date of Institution : 20.06.2013 Date of Decision : 20.08.2013 Sajjan Kumar Gupta, Father of Master Nimish Goel, R/o H.No.3871/1, Sector 47 D, Chandigarh- 160047. Appellant/Complainant. Versus Manager/Centre Head, FIITJEE Limited, SCO No.321-322, 1st & 2nd Floor, Sector 35-B, Chandigarh - 160022 ....Respondent/Opposite Party. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
Argued by:Sh. Sajjan Kumar Gupta, appellant in person.
Respondent already exparte.
PER DEV RAJ, MEMBER This appeal is directed against the order dated 24.5.2013, passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed the complaint, filed by the complainant (now appellant).
2. The facts, in brief, are that the son of complainant, namely, Nimish Goel, took admission in Opposite Party- Institute on 22.2.2011 in 4 Year Classroom Programme (2011-12-2013) & (2013-14-2015) for FIITJEE Weekend Contact Classes with Enrol.NO.9062161150017. It was stated that an amount Rs.26,500/- was paid as fee to the Opposite Party, in advance, for the Session 2011-12-2013. It was further stated that besides this, the complainant also gave the post-dated cheques of Aug., 2012 & Sept., 2012 for an amount of Rs.52,831/-, as an advance fee, for the Sessions 2013-14-2015 which was to commence in April, 2013. It was further stated that the said post-dated cheques were realized on the due dates. It was further stated that the complainant came to know about the unethical business practice of the Opposite Party, during the session 2011-12-2013, as it advertised fascinating cash Awards/Medals through FTRE (Fiitjee Talent Reward Examination) every year under fictitious terms & conditions, which could not be fulfilled by anyone, to claim such award. It was further stated that the son of the complainant Nimish had got 34th All India Rank in FTRE 2011 and 38th All India Rank in FTRE 2012 and, as such, became eligible for cash awards of Rs.1,25,000/- and Rs.1,00,000/- respectively, but the same were denied. It was further stated that being demoralized with the act of the Opposite Party, the son of the complainant left the Opposite Party - Institute and demanded the refund of fee, paid for the Session 2013-14-2015 vide e-mal dated 27.11.2012 i.e. well in advance before the commencement of the session, which was to start from April, 2013. It was further stated that the final notice vide e-mail dated 23.1.2013 was also sent to the Opposite Party, to refund the fee, for second session. It was further stated that the complainant also visited the Opposite Party personally seeking refund, but the same was verbally refused by it. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), seeking directions to the Opposite Party, to refund Rs.52,831/- being the fee for the Session 2013-14-2014; pay Rs.25,000/- as compensation for mental agony and physical harassment; and Rs.5,000/- as cost of litigation, was filed.
3. Opposite Party, in its written version, stated that a sum of Rs.22,860/- were deposited by the complainant through Demand Draft, which was cleared later on. It was admitted that the complainant also deposited Rs.56,469/- in the form of Post Dated Cheques, which were also cleared. It was stated that the complainant deposited a total sum of Rs.79,331/- as part payment of the fee of the course, whereas the actual fee of the course was around Rs.1,75,000/- plus service tax etc. It was further stated that the complainant opted Fee Plan 3 with minimum fees in which he had to pay less amount, in comparison to other plans; and, therefore, the said plan was not having exit option. It was further stated that the son of the complainant deposited lesser amount of fee, in comparison to the actual fee, as he was granted scholarship on the basis of marks obtained in FTRE Exam (Ann.IV). It was further stated that the son of the complainant had already availed FTRE benefit in the year 2010, in furtherance whereof, he joined the Opposite Party, by opting four years classroom programme for IIT-JEE, in which he was granted fee waiver as per his ranking. It was further stated that the appearance of the son of the complainant, in the subsequent FTREs in the years 2011 and 2012, was with the purpose of getting feedback only and not for granting any scholarship. It was further stated that as the complainant had opted Plan-3 with minimum fee, which was not having exit option, as such, the fee could not be refunded. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the appellant/complainant, in person, and, on going through the evidence, and record of the case, as also the written arguments of the parties, the District Forum, dismissed the complaint, as stated above, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
7. Notice of appeal was issued to respondent/Opposite Party for 30.07.2013 on 25.06.2013, but none appeared on its behalf, despite the fact that it was presumed to have been duly served, as envisaged by Regulation 10(1)(2) of the Consumer Protection Regulations, 2005. It was, accordingly, proceeded against exparte.
8. We have heard the appellant, in person, and, have gone through the evidence, and record of the case, carefully.
9. Sh. Sajjan Kumar Gupta, appellant, in person, submitted that the District Forum wrongly dismissed his complaint, on the basis of so called hidden terms and conditions and forced bilateral agreements. He further submitted that his son decided to discontinue the studies with the Opposite Party, due to its unethical/unfair business practices. It was further submitted that accordingly, refund of fee was applied for the 2nd Session of 2013-14-2015 vide email dated 27.11.2012, well before the commencement of the session. The appellant annexed the fee structure of the Opposite Party, which indicated that the 4 Year Programme, was not a single programme, but divided into two sessions of two years each and the fee for both the sessions was also separately mentioned. It was further submitted that, accordingly, fee for the session 2011-12-2013 was Rs.26,500/- whereas the fee for the session 2013-14-2015 was Rs.52,831/-. He further submitted that he had also cited similar cases before the District Forum, wherein refund of fee was ordered, but the same were not considered by it. Referring to the judgment of Honble Supreme Court of India in Islamic Academy of Education Vs. State of Karnataka, (2003) SCC 696, the appellant/complainant submitted that this judgment would, thus, override any bilateral agreement between the parties. Lastly, the appellant/complainant prayed that his appeal be accepted, order of the District Forum be set aside and the reliefs claimed in the complaint, be awarded.
10. Admittedly, the son of the appellant/complainant took admission in the respondent/Opposite Party Institute on 22.2.2011 in 4 Year Classroom Programme (2011-12-2013) & (2013-14-2015) for FIITJEE Weekend Contact Classes with Enrol.NO.9062161150017. It is apparent from record, that the appellant/complainant paid an amount Rs.26,500/- as fee to the Opposite Party, in advance, for the Session 2011-12-2013 and Rs.52,831/- (also in advance) through post dated cheques of August 2012 and September, 2012 for the Session 2013-14-2015 which was to commence in April, 2013. The son of the appellant/complainant attended the classes only for the Session 2011-12-2013 and on coming to know about the alleged unethical business, carried on by the respondent/Opposite Party, demanded the refund of fee paid for the Session 2013-14-2015 vide e-mal dated 27.11.2012 i.e. well in advance before the commencement of the session in April, 2013. As such, the son of the appellant/complainant attended the course for the 1st Session (i.e. 2 years) and sought refund for the 2nd part of the Session, as aforesaid.
11. The Course Fee for Four Year Classroom Program for FIIT-JEE, 2015, as per Annexure-I (page 125) attached with written arguments by the appellant/complainant, was as under: -
Fee head Amount payable to FIITJEE Service Tax Total Amount of DD/PDC Admission Fee 10,000 1,030 22,060 Infrastructure Fee 10,000 1,030 Books & Study Material Price 800
-800
Examination Fee 0 0 0 Tuition Fee 3,300 340 3,640 Total 23,380 2,400 26,500 Course commencement of Class XI in September 2012 Admission Fee 20,000 2,060 46,326 Infrastructure Fee 22,000 2,266 Books & Study Material Price 1,100
-
1,100 Examination Fee 0 0 0 Tuition Fee 4,900 505 5,405 (AITS+GMP+RTPF) Fee 0 0 0 RIP Fee No fee is being charged Total 46,900 4,831 52,831 GRAND TOTAL 72,100 7,231 79,331 Batch Details Batch Commencement: April 2011 although academic inputs will be provided soon after enrollment in the form of SAT and Junior Science Olympiad & Mathematics Olympiad Foundation Package.
End of Session (First Year): Mid of December, 2011.
End of Session (Second Year): End of September/October 2012 End of Session (Third Year):Mid of November, 2013 After End of Session (Fourth Year), students will undergo Rank Improvement Program (RIP).
12. It is evident from Enrollment Report-cum-Receipt-Course Fee dated 22.02.2011 (Annexure IV) that the son of the appellant/complainant had deposited the following payments for Four Year Classroom Program for IITJEE-Weekend Contact Classes:-
Sr. No. Mode Inst. No. Date Amount (Rs.) 1 DD 103260 19.02.2011 22,060.00 2 PDC 753781 24.03.2011 3,640.00 3 PDC 753782 08.08.2012 46,326.00 4 PDC 753784 08.09.2012 5,405.00 Total 77,431.00
13. Further, as per Enrollment Report-cum-Receipt-Books and Study Materials (dated 22.02.2011), the son of the appellant/complainant had deposited the following payments:-
Sr. No. Mode Inst. No. Date Amount (Rs.) 1 DD 103261 19.02.2011 800.00 2 PDC 753783 08.08.2012 1,100.00 Total 1,900.00
14. The price of books and study material was Rs.19,000/- against which, a discount of Rs.17,100/- on account of Scholarship-FTRE (90%) was given by the respondent/opposite party and only an amount of Rs.1,900/- was paid by the appellant/complainant as is clearly evident from Annexure IV (Page 39). Therefore, the contention of appellant/complainant that the respondent/ Opposite Party adopted unethical practice is misconceived and devoid of merit.
15. The amount of Rs.22,060/- was on account of admission fee and infrastructure fee, on which there was no discount, as per the Payment Plan opted by the appellant/complainant, whereas 90% waiver was on tuition fee plus books and study material and 100% waiver on examination fee. However, as admitted by the appellant/complainant, during the course of arguments, his son studied for two years and he had no grievance, against the Opposite Party, with regard to fee charged by it for the first two years of the Course.
16. As per the scheme of the Institute, the students, who opted for medical or humanity stream, had an exit option after Class X and they were required to opt for Fee Payment Plan I or Plan II only, at the time of joining. The son of the appellant/complainant had, however, opted for Payment Plan III with minimum fee, and this Plan was not having any exit option, as is evident from Annexure D of Annexure II. The following stipulations appear on this Annexure, which are extracted below:-
Kindly do not take admission at FIITJEE if the clauses of the declaration on the enrolment form along with the following amendment is not agreeable to you Specifically Declaration 7 is being reproduced hereunder:
Declaration 7: In addition to the above, I understand without any ambiguity, that the fee once paid is not refundable at all, whatever the reasons be, neither is it adjustable towards any other existing courses at FIITJEE or any yet to be launched nor towards the fee of any other existing or prospective student.
Declaration:
I/We the Father/Mother/Legal Guardian and/or the student hereby severally and jointly declare that I/we have read and understood all the clauses contained in the Declaration on the enrolment Form together with the above amendment and agree to abide by them without any reservation or ambiguity.
17. The case of appellant/complainant is for refund of fee of Rs.52,831/- which was paid by him, in advance, for the 2nd Term of the Course for the Session 2013-14-2015. Admittedly, the son of the appellant/complainant informed about his intention not to continue with second part of the course (2 years) to the respondent/Opposite Party vide email dated 27.11.2012 i.e. well in advance before the commencement of the 2nd Session, which was to start in the month of April, 2013. It was admitted by the respondent/Opposite Party, that the complainant deposited Rs.79,331/- as part of fee of the Course. No doubt, the declarations, as extracted above, were signed by the appellant/complainant, and his son. But since the appellant/complainant had informed the respondent/ Opposite Party, well in advance, before the commencement of second part of the course, we are of the considered opinion that the above declarations, could not bind the appellant/complainant. The respondent/Opposite Party denied refund of fees on the ground that the appellant/complainant and his son had signed the declaration and the fee once paid was not refundable. Such a declaration has no meaning in the eye of law. At the time of taking admission, the appellant and his son had no meaningful choice than to sign on the dotted lines of the declaration, as they were in disadvantageous position whereas the Opposite Party, was in a dominant position. Such a declaration cannot have an over-riding effect over the law laid down by the Honble Apex Court in Islamic Academy of Educations case (supra).
18. The appellant/complainant has placed reliance on Islamic Academy of Education Vs. State of Karnataka, (supra), wherein the Honble Supreme Court, inter-alia, held as under:-
In our view an educational institution can only charge prescribed fees for one semester/year, if an institution feels that any particular student may leave in midstream then, at the highest, it may require that student to give a bond/bank guarantee that the balance fees for the whole course would be received by the institute even if the student left in midstream. If any educational institution has collected fees in advance, only the fees of that semester/year can be used by the institution. The balance fees must be kept invested in fixed deposits in a nationalised bank. As and when fees fall due for a semester/year only the fees falling due for that semester/year can be withdrawn by the institution. The rest must continue to remain deposited till such time that they fall duo. At the end of the course the interest earned on these deposits must be paid to the student from whom the fees were collected in advance.
19. In FIITJEE Ltd. Vs. Dr. (Mrs.) Minathi Rathi, Revision Petition No.3365 of 2006 decided on 14.11.2011=IV (2006) CPJ 255, and FIITJEE Ltd. Vs. B.B. Popli, Revision Petition No.1805 of 2007, decided on 14.11.2011, it was held by the National Consumer Disputes Redressal Commission, New Delhi, that, in case, the Course was for a period of two years, and the Institute, gets deposited the fees, for the entire Course period, and the student leaves the Course midway, then it is entitled to retain the fees for the period of one year, and is liable to refund the same, for the second year.
20. As per the law laid down in the aforesaid judgments of Honble Supreme Court, and the National Commission, the respondent/Opposite Party could charge fee, for a semester or year as per the duration of the course. In the instant case, the appellant/complainant did not execute a bond/bank guarantee that the balance fees for the whole course, would be received by the Institute, even if he left in midstream. The son of the appellant/complainant left the course after completing the first part of the course, for two years. The respondent/Opposite Party was informed well, in time, about his intention for not continuing the second part of the course. As no bond/bank guarantee, was executed, we are, therefore, of the considered view that the fee for the second part of the course, when the son of appellant/complainant did not attend the classes, even for a single day, could not be forfeited and there was no justifiable reason with the respondent/Opposite Party, not to refund the same. The respondent/Opposite Party, by not refunding the fee deposited by the son of the complainant for second part of the course, was deficient, in rendering service, and adopted unfair trade practice.
21. In view of discussion aforesaid, the District Forum was wrong in dismissing the complaint of the appellant/complainant, who was entitled to the refund of fee of Rs.51,831/- i.e. [Rs.52,831 minus Rs.1,000/- as administrative charges (as per UGC guidelines)].
22. No other point, was urged, by the appellant/complainant.
23. The impugned order, therefore, suffers from illegality and perversity, warranting the interference of this Commission.
24. For the reasons recorded above, the appeal filed by the appellant/complainant, is partly accepted with costs, the impugned order, rendered by the District Forum, is set aside, and the complaint filed by the appellant/complainant, before the District Forum, is partly allowed. The respondent/Opposite Party is directed as under: -
(i) to refund Rs.51,831/- to the appellant/complainant;
(ii) to pay Rs.5,000/- to the appellant/complainant, as costs of litigation.
This order be complied with, by the respondent/Opposite Party, within a period of 45 days, from the date of receipt of its certified copy, failing which, it would be liable to pay interest @9% per annum on the amount, mentioned in Clause (i) from 27.11.2012 (i.e. the date when the appellant/complainant applied for refund of the fee vide his email dated 27.11.2012), till the date of actual payment, to the appellant/complainant, besides paying litigation costs as aforesaid.
25. Certified Copies of this order be sent to the parties, free of charge.
26. The file be consigned to Record Room, after completion.
Pronounced.
20th August, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Ad STATE COMMISSION (First Appeal No.261 of 2013) Argued by: Sh. Sajjan Kumar Gupta, appellant in person.
Dated the 20th day of August, 2013 ORDER Vide our detailed order of even date, recorded separately, this appeal filed by the appellant/complainant, has been partly accepted with costs, as per the directions.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Ad